C.C. Anderson Stores Co.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. C. ANDERSON STORES COMPANY and RETAIL CLERKS INTERNATIONAL' ASSOCIATION'` LOCAL 1614, AFL, Petitioner. Case No. 19-RC-1067. April 20, 1953 SUPPLEMENTAL DECISION AND DIRECTION On September 29, 1952, pursuant to the Board's Decision and Direction of Election dated September 2, 1952, an election was conducted among employees in the unit designated in the De- cision and Direction as follows: All regular full-time and regular part-time selling and nonselling employees in the Employer's department store at Boise, Idaho, including office clerical employees, ad- vertising employees, stockmen, drivers and helpers inthe warehouse, appliance servicemen, Food Mart employees, and leased department employees on the Employer's pay- roll, but excluding bakers, meat cutters, and wrappers in the Food Mart;-- the secretary to the managing director, demonstrators and leased- department employees not on the Employer's payroll, guards, and supervisors as defined in the Act. The tally of ballots issued onSeptember29, 1952, and served on the parties at that time reveals that of approximately 170 eligible voters, 74 cast valid ballots for the Petitioner, 85 cast valid ballots against the Petitioner, and 5 ballots were chal- lenged. On October 1, 1952, the Petitioner filed timely objections to the election, alleging, among other things, that the Employer had failed to make available for timely inspection its list of ineligi- ble employees which prevented certain eligible employees from voting, that it misclassified certain janitors as guards and en- gaged in conduct which interfered with the rights of the em- ployees freely to designate their bargaining representative. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation, and on December 10, 1952, issued and served upon the parties his report on objections to election. Thereafter, on January 12, 1953, the Employer filed exceptions to the report of the Re- gional Director. 1 On January 27, 1953, the Board remanded the case to the Regional Director for the purpose of investigating the five challenged ballots. On February 19, 1953, the Regional Director issued and served upon the parties his report on challenged ballots and thereafter, on February 23, 1953, the Employer filed its exceptions to the above report. Upon the basis of the entire record in this case, the Board' finds: 1 We shall not pass upon the objections to the election , the Regional Director 's report thereon, and the Employer 's exceptions thereto, until the final results of the election have been ascer- tained, because such objections might become moot after the challenged ballots herein ruled valid have been counted. t Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson] . 104 NLRB No. 21. C. C. ANDERSON STORES COMPANY 219 1. In his report on challenged ballots, the Regional Director sustained the challenge to the ballot of Margaret Sproat3 and overruled the challenges to the ballots of Royce Glasgow, Olive D. Jones, Laura Caldwell, and Paul Jewell.4 The Employer excepts to the report and requests that a hearing be conducted to enable it to dispute and contest the Regional Director's findings. In respect to the Regional Director's finding con- cerning Margaret Sproat, Olive D. Jones, Laura Caldwell, and Paul Jewell, the Employer does not indicate what issues, if any, it would attempt to raise at the proposed hearing. Other than generally excepting to the report, the Employer has failed to raise any material issues as tothe factual findings contained therein. I We therefore find that the hearing would serve no use- ful purpose. In accordance with the Regional Director's recom- mendations we sustain the challenge to the ballot of Margaret Sproat and overrule the challenges to the ballots of Olive D. Jones, Laura Caldwell, and Paul Jewell. 2. The Regional Director further found that Royce Glasgow, although classified at the time of the election as a guard, spent not less than 5 hours of his 8-hour shift performing janitorial duties. In addition, Glasgow picks up and delivers mail, checks employees and customers as they leave the store at closing time, locks up the building, and checks the authority or qualifi- cations of persons desiring to enter after the store has closed. The Regional Director recommended that the challenge to the ballot of this employee be overruled. The Employer does not controvert or deny that Glasgow spends the majority of his time doing janitorial work. Instead, the Employer sets forth the above-enumerated duties of Glasgow and contends that, if a hearing were held, the evidence would dispute the finding by the Regional Director. Thus the Employer does not point to any specific evidence in support of its conten- tion that Glasgow is a guard,6 but requests a hearing for the purpose of developing a case to support its assertion. The Em- ployer argues that by the process of examination and cross-ex- SThe Regional Director recommended sustaining the challenge to the ballot of Margaret Sproat who had left the Employer 's employ on August 31 , 1952, and had not been recalled for part-time work since that date , bacause at the time of the election she was not a regular part- time employee as designated in the voting unit. 4Olive D. Jones, challenged because her name did not appear on the Employer 's eligibility list, was found to have worked as a part-time employee prior to September 2, 1952, and as a full-time employee thereafter ; Laura Caldwell, challenged as ineligible as an appliance dem- onstrator , was found to be within the unit designation because of her appearance on the Em- ployer's payroll during the period July 19 to September 30, 1952; moreover , there was no in- dication from the payroll records that this employee was considered as being on a casual or contingent basis. Paul Jewell, challenged as a produce supervisor , was found to have never been expressly given authority to recommend the hiring or discharging of other employees, and was in common with the other employees in the Food Mart under the direct supervision of the Food Mart manager. S Benton's Cloak & Suit Company, 97 NLRB 1327. 6 We have previously held that, for an individual to be considered employed as a guard, his guard duties must constitute a dominant aspect , and not merely an incidental feature, of his total work pattern. Radio Corporation of America, 76 NLRB 827 . The Employer has failed to allege or present any evidence to the effect that Glasgow 's guard duties constitute a dominant aspect of his total work pattern. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amination at a hearing, its contention will ultimately be es- tablished. We find that the Employer has failed to raise any substantial and material issue concerning Glasgow's classifica- tion as a janitor sufficient to warrant the holding of a hearing.7 Accordingly, we shall adopt the Regional Director's recom- mendations. The challenge to the ballot of this employee is therefore overruled. We find that he was eligible to vote in the election. DIRECTION IT IS HEREBY DIRECTED that, as part of the investigation to ascertain representatives for the purpose of collective bar- gaining with the Employer, the Regional Director for the Ninteenth Regidn shall, pursuant to National Labor Relations Board Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Royce Glasgow, Olive D. Jones, Laura Caldwell, and Paul Jewell, and thereafter prepare and cause to be served uponthe parties a supplemental tally of ballots, including therein the count of the challenged ballots described above. 7See footnote 5, supra. BRADY AVIATION CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW- CIO), Petitioner. Case No. 16-RC-1227. April 20, 1953 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before H. Carnie Russell, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act.' 1 The Employer at the hearing moved to dismiss the petition contending that it was not en- gaged in commerce within the meaning of the Act. The Employer is engaged in the assembling of detail parts into major subassemblies for the use by the United States Air Force and United States Navy. During 1952, the Employer's gross receipts were in excess of $50,000. Under the circumstances, we find that the Employer falls within that category of enterprises "substantially affecting national defense," and that it will effectuate the policies of the Act to assert jurisdiction herein. Westport Moving and Storage Company , 91 NLRB 902. 104 NLRB No. 36.